Aiding and Abetting vs Accessory After the Fact

Many crimes take a whole team to coordinate and carry out, and just because they weren’t the ones directly committing the crime doesn’t mean that they won’t be held responsible for helping someone before, during, or after a crime. The various terms used to describe this assistance will vary by state, by it’s generally referred to as aiding and abetting or accessory after the fact, typically depending on what part of the crime they were a part of and the type of aid they provide. Although it will also vary by state, severity of the crime, and amount of involvement, helping a criminal commit a crime can result in a felony conviction – sometimes even with a charge just as severe as the person who actually committed the crime.

What Is Aiding and Abetting?

Aiding and abetting is playing an active role in the crime without committing the crime itself, instead providing assistance to the offender in some way. Generally, the defendant was involved either before or during the commission of the crime. A charge for aiding and abetting can come from something as simple as encouraging someone to commit a crime. This charge is treated as severely as the charge for the overall crime committed. While aiding and abetting are typically used together and interchangeably, in some states, aiding describes actual assistance in the commission of a crime, while abetting is simply encouraging someone to commit a crime, whether forcibly or not. They are, however, usually describing one act.

Elements Required

Federally and generally among states, aiding and abetting requires four elements:

1. A crime was committed
2. The defendant purposefully helped or encouraged the crime
3. The defendant gave the assistance willingly and knowing what it was for
4. The assistance happened before the crime was completed

All four of these elements must be fulfilled for a guilty sentence. While the defendant need not be involved in every aspect of the crime, they must have known beforehand what the act was aiding. However, if the primary defendant – the one who committed the act – is found not guilty, the accessory to the crime can still be convicted, as long as it is proven that a crime actually occurred and they were involved. In fact, the primary offender doesn’t even have to be discovered yet for an accessory to be charged.

Aiding and Abetting Laws

Federal Law

Federal law allows for the prosecution of all individuals who contributed to a crime in any way. In fact, under 18 U.S. Code §?2, defendants who help commit a crime, an accessory, can be punishable just as the one who carried out the crime, the principal. This law reads as:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

That means that, for every single criminal offense there is in federal law, an accomplice will face the same charges and consequences as if the defendant had committed the crime themselves.

State Laws

• Colorado: Aiding and abetting in Colorado is defined as helping a criminal through “conduct constituting a substantial step toward the commission of the offense,” and much like the federal law, the accessory will be treated as if they committed the crime themselves. However, it does allow for the defense that the defendant withdrew their help or attempted to stop the crime from happening.

• Florida: Florida also allows for accomplices to be charged just as severely as the principal, holding them responsible for the entire crime committed.

• Idaho: Idaho’s similar law holds all who encourage aid in completing a crime will be held to the same culpability as the principal. It also provides for a crime of aiding and abetting in election offenses, providing a punishment of six months in a county jail or two in a prison.

• Louisiana: Louisiana charges their accessories with the same charges as the principal. They also include specific laws for aiding and abetting the impersonation of law enforcement or a firefighter and helping others to trespass. These are just misdemeanors, however, with only a fine of no more than $500 or a prison sentence of up to five years, or both.

• Nebraska: Similar to most other states, aiding and abetting a criminal in Nebraska will come with being held accountable for the entire offense. For this state, simply encouraging someone to commit a crime can be enough for an aiding and abetting charge. They will also be charged with any other crimes that occur while the crime they assisted with is carried out, regardless of whether they were involved in it or not. Specified in cases of murder is evidence sufficient to be charged with homicide, which includes: a conversation about someone killing a victim, providing the murder weapon, and breaking into a home for the purpose of someone else completing the murder.

• New York: In New York, what’s referred to as criminal facilitation is divided into four different degrees:
  • Criminal facilitation in the first degree involves an adult (over 18 years old) providing aid to a minor under 16 to commit a class A felony and is charged as a class A felony.
  • It’s second degree criminal facilitation to give any assistance to anyone trying to commit a class A felony. This is also a class A felony.
  • Criminal facilitation in the third degree is a class E felony, which includes helping someone under 16 commit any other felony.
  • When helping anyone commit a general crime, it’s a class A misdemeanor.

• South Dakota: Aiding and abetting in South Dakota also qualifies for the same charge as the principal. In their law, they include advising as providing assistance, meaning physically assisting someone isn’t necessary; it can just be brainstorming and ideas. They also label it as a class 6 felony to encourage or help anyone take their own life through suicide.

• Texas: Texas law establishes that accomplices can be held just as responsible for the crime when, “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”

• Washington: Their law even extends to traffic violations and includes any type of conspiracy or assistance in committing any crime. It specifies that those who aid and abet will also be charged with the full crime itself.

What Is Accessory After the Fact?

An accessory to a crime is someone who helps the principal with the crime in some way and is usually classified as either before the fact or after the fact. Accessory before the fact will often consist of helping the criminal plan or prepare for committing the crime, but federally and in some states, this will be considered aiding and abetting, not accessory. Being accessory to a crime after the fact involves helping a criminal escape, cover up the crime, or otherwise allow the criminal to evade the law. These are typically treated slightly less severely than aiding and abetting. Additionally, someone will typically be charged with either aiding and abetting or accessory after the fact, not both.

Elements Required

This requires three elements for a conviction:

1. A crime was committed
2. The defendant knew the crime occurred
3. The defendant worked to “prevent the apprehension, trial, or punishment” of the principal

Accessory After the Fact Laws

Federal Law

Federal accessory after the fact is a little less severe than aiding and abetting. 18 U.S. Code §?3 describes an accessory after the fact as:

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment.

It provides that those guilty of accessory after the fact are punishable by up to half of the imprisonment and/or fine that the principal receives. If the principal is facing life in prison or the death penalty, the maximum penalty is 15 years in prison.

State Laws

• Colorado: For Colorado, aiding a criminal is accessory after the fact when the defendant helps the criminal evade arrest, hides them, warns them, provides them with money, transportation, or a disguise, or hides or destroys evidence. If the crime is a class 1 or 2 felony, accessory after the fact is a class 4 charge with two to six years in prison or a fine of $2,000-$500,000, or both. Anything lower will be either a class 5 or 6 felony charge, which can be 12-18 months in prison and/or a fine of $1,000-$100,000. Finally, if the crime was a misdemeanor, they can only receive a class 1 petty offense charge with 6-18 months in jail and a possible fine of $500-$5,000.

• Florida: In Florida, a charge for accessory after the fact includes giving any assistance that will allow the criminal to avoid prosecution. The charge will be one degree lower than that of of the entire crime committed. For example, assisting with a capital felony crime is a first degree felony, a first degree crime is a second degree charge, and so on. However, it does stipulate that it doesn’t apply to those helping a husband, wife, child, grandchild, brother, sister, parent, or grandparent.

• Idaho: An accessory to a crime in Idaho is anyone who harbors or helps a criminal prevent punishment or arrest. It comes with a maximum prison sentence of five years and a possible fine of up to $50,000.

• Louisiana: An accessory after the fact in Louisiana, someone who knows that a felony has been committed and in some way helps the offender avoid being caught, is punishable by up to five years in prison and up to a $500 fine. This will not exceed half of the punishment that the principal of the crime is receiving for committing the crime.

• Nebraska: Accessories can be charged in Nebraska if they help a criminal after a crime has been committed. If they harbor the criminal, provide a weapon, disguise, or transportation, tamper with a witness, or hide evidence and it’s a class I, IA, IB, IC, or ID felony, the accomplice receives a class IIA felony. If it’s a class II or IIA felony, they’ll get a class IIA felony charge, and a class IV felony offense results in just a class I misdemeanor. If their assistance is giving false information to a police officer, warning the criminal of their coming discovery or arrest, or otherwise hindering the investigation and pursuance of justice through force or trickery and it was a class IV felony crime, they will get a class I misdemeanor. Any other felony class will come with a class IV felony charge.

• New York: The punishment for accessory after the fact in New York is up to the court martial and includes the general acts of helping a criminal evade the law, as well as simply knowing a felony occurred and not reporting it. They must, however, know that the person they were helping intended to or had committed a crime.

• South Dakota: Simply, South Dakota gives the decision of charging an accessory after the fact to the court martial.

• Texas: Texas Government Code § 432.123 provides a charge of accessory after the fact when the defendant knows a crime occurred and they in some way help the criminal to avoid arrest or prosecution. This can include harboring a fugitive, helping a fugitive avoid arrest, or warning the fugitive of impending apprehension. It’s punishable according to the crime committed, so if the principal committed a felony, the accomplice can receive a felony charge – or a misdemeanor for the principal’s misdemeanor.

• Washington: Washington has similar phrasing to many other state laws, punishing those who “receive, comfort, or assist the offender in order to hinder or prevent his or her apprehension, trial, or punishment.” Its penalty is determined by the court martial.

Possible Defenses

One of the primary defenses is that the defendant shouldn’t be held accountable for their actions for some reasons. One of these could be that the accused accessory did not commit the crime willingly and that they were actually a victim in the situation. This could involve blackmail, extortion, or threats.

Another argument could be made that the defendant was involved in the crime simply as a customer, not a co-conspirator or accomplice. This is frequently applies in crimes involving betting, gambling, prostitution, and drug transactions. However, this doesn’t mean that the defendant won’t receive other charges for their participation in the crime. For example, someone that is simply a customer caught up in a case of drug trafficking may still receive possession charges.

Additionally, in some cases, it can be argued that the defendant was a subordinate of the principal, perhaps claiming they were only following orders and therefore don’t have as much culpability as required in aiding and abetting or accessory.

Another is the withdrawal offense, which means that the defendant claims that, at some point, they clearly withdrew their support and assistance, but it was too late to prevent the crime from happening. Often, this requires proving that the defendant to have made some effort to stop the crime, such as contacting law enforcement or the victim and explicitly communicating to the principal their intentions. At least removing oneself from the situation could also be grounds for at least mitigating circumstances that lessen the charges or penalty. However, this has had varying levels of success, and there does not seem to be a general consensus on when this should be enough to drop charges.

The defendant may also want to provide evidence combatting one of the required elements for their crime. For example, it could be argued that the defendant was not aware that their assistance was contributing to a crime or that the assistance wasn’t even intentional. They could also provide doubt that the crime even occurred in the first place.

A Hefty Price to Pay

Helping a criminal commit a crime or get away with it may seem less severe than committing the crime itself, but in many cases, the accomplice can be held just as accountable to the entire crime committed as the primary offender. Aiding and abetting tends to be more severe, as they assist the criminal in making the crime a success, while accessory after the fact is likely less involved. However, some states also pursue accessory after the fact severely as well. Luckily, it usually requires some general conditions, such as knowing of the crime beforehand and to knowingly and willingly participate. Overall, it’s best to avoid any participation in any stage of a crime in order to avoid serious charges.